Lore of the land as First Nations people take on BHP

First Nations people in West Australia's Pilbara iron ore region are taking on BHP Billiton over its claim for leases covering 200 square kilometres of their tribal country.

West Australia's Pilbara region

2009 Article - Jan Mayman WA Today 2 August 2009

Unaware that the strange visitors planned to turn their country into a vast sheep run, the Aboriginal people of the Pilbara welcomed the first white settlers in the mid-19th century, and led them to fresh water.

Tribal women befriended lonely station wives, helping to deliver their babies and care for their children. Pioneers such as Emma Withnell, a new bride who arrived with her husband John in 1864 after a perilous voyage from Perth, almost 1600 kilometres south, recorded heart-warming stories of racial harmony in her diaries and letters.

But the idyllic pastoral scene soon degenerated into a tragedy of murder, rape and slavery, as more and more land-hungry whites arrived with their horses, sheep, guns and stockwhips. They brought alien, fatal diseases and a reign of terror - a tragic saga well-documented by historians.

Open-range sheep farming devastated a fragile, semi-arid environment and degraded its water resources: native food supplies dwindled until nomadic tribespeople were forced to camp on pastoral stations, surviving as unpaid workers on meagre rations and the occasional hand-out of cheap clothes.

It would be 150 years after European colonisation before the Martidja Banyjima people could fight for their land with powerful white weapons: lawsuits and eloquent lawyers, using rights flowing from the landmark 1992 Mabo judgment that offered the first legal recognition of Aboriginal land ownership. That decision came decades after the mining giants first arrived in the Pilbara to carve up its mineral resources.

Then, the idea of paying royalties to the original owners was inconceivable. But even with Native Title law and legally defined as traditional owners, the tribespeople had only the right to negotiate compensation payments, now locked away in trust funds professionally managed for group benefit.

Like the hedgerow priests who kept their faith alive in Ireland during the dark days of English occupation, Aboriginal elders, men and women, maintained their infinitely ancient culture and religion, travelling vast distances to perform secret ceremonies and songs in their holy places. Their spiritual strength gave the Martidja Banyjima people courage to take on the world's biggest mining company.

Miners are often granted exemption from Aboriginal Heritage law, allowing them access to the most cherished sacred sites, like the Weeli Wolli Creek.

Once it was a sublimely beautiful oasis on Martidja Banyjima land, hallowed to the Rainbow Serpent, the Aboriginal creation deity, rich in wildlife, its delicate ecology adapted to seasonal flows, with prehistoric rock art gracing its marble-walled gorges.

Now it is a weed-ridden drain for Rio Tinto's giant Hope Downs mine, where 110 megalitres of water is pumped out daily to expose the rich orebody. Since that project began, the discovery of ancient tools carbon-dated at 35,000 years old on their land gave them a new sense of pride and purpose, fuelled by the destruction of yet another sacred place a few months later. Rio graciously allowed them to perform one last dance ritual at the site before it was destroyed, but the loss enveloped the community in bitter mourning. It also fuelled their determination to stop BHP Billiton's bid for mining leases on 200 square kilometres of their traditional land.

After months of community meetings and deliberation, the Martidja Banyjima decided on a new legal path via the Warden's Court, which advises the mines minister on new lease applications.

The precedent that encouraged the Martidja Banyjima was a case where the Environmental Defender's Office took action over mining plans in the pretty Perth hills. That resulted in the WA Supreme Court ruling that the Mining Warden, magistrate Graeme Calder, could in the public interest consider environmental objections to mining proposals.

The disputed land includes important areas of the spectacular Hamersley Range they call Karijini, sacred heartland of their culture, where they perform ancient ceremonies that they believe are vital to keep their land alive. "The country is dying today, because so much is cut off from us by the big mining leases. There are no heartbeats walking round the country, so it is slipping into a coma. The spirits of the land think no one wants them any more," says Michael Woodley, a respected elder of the Pilbara's Yindjibarndi group. He says Aboriginal leaders who failed to protect their country would be punished with death: "If this BHP claim goes ahead, the spirits will know we failed and some of us will die. We believe this is the truth.

"Our country is like our temple, our university, our Mecca, a holy place where we go to learn and collect knowledge, and connect with the land. I spend a lot of time out there with our old people, learning their stories. We can't break off so much as a leaf without permission from the spirits."

Maitland Parker, a Martidja Banyjima elder and a senior ranger in Pilbara's spectacular Karijini National Park, says: "The mining people seem to find it hard to understand that some things are more important than money to us."

The disputed area contains iron ore that could be worth billions in future. While Parker concedes that mining money has brought material benefits to his community, there are times he wishes his people could still visit all their sacred places.

"The miners just want to take more and more. It never stops. They say this is progress. We feel terrible pain, ongoing pain, when we see our country destroyed," Parker says.

Just over 200 men and women with large extended families, the Martidja Banyjima are scattered all over the Pilbara. Many still grieve for family members who worked in the infamous Wittenoon asbestos mines and with asbestos mingled with iron ore in some areas, they are reluctant to work in today's mining industry.

The stakes in the current dispute are awesome. The claimed area contains ore potentially worth many billions of dollars, depending on future prices and Chinese demand. Most of Australia's iron ore resources are in the Pilbara, with exports worth about $16 billion last year, according to the Department of Trade. The Australian Bureau of Agricultural and Resource Economics predicts this will rise to $25.47 billion this financial year.

If the mining warden agrees to hear their case, they will call a series of expert witnesses, including WA's 2009 scientist of the year, Professor Jorg Imberger, a world authority on hydrology, as well as elders to explain their fears. They are especially concerned by the cumulative impact of mining on the Pilbara's water resources, and the underground aquifers that sustain the region. Its lifeline is the mighty Fortescue River, which in the wet season flows 500 kilometres from the Hamersley Ranges to the coast.

"Water is the centre of our culture - the Fortescue and all the creeks were made by the same religious being, our God," says Michael Woodley who is chairman of the Yindjibarndi Aboriginal Corporation. "If we allow the Fortescue to be damaged, we know the spirits will kill us. Our own Yindjibarndi law and culture is hurt when the Banyjima culture is hurt. We all have to look after each other. If our country is gone, how can we pass on and teach our laws to our children? We have lost so much already."

There are already four big mines on Martidja Banyjima country: Yandi and Area C, owned by BHP Billiton, and Yandicoogina and Hope Downs, owned jointly by Rio and Hancock Prospecting. They all plan big expansion programs. As mining plunges deep below the water table, with huge volumes of water pumped out to expose the orebody, the traditional owners are profoundly disturbed by the impact on underground aquifers that feed springs, billabongs and waterholes all over the region.

Two worlds met in a recent preliminary hearing in the WA Warden's Court. As Martidja Banyjima elders looked on, Melbourne barrister Sturt Glacken, SC, argued that important public interest, human rights and environmental issues were at stake, and that his clients' indigenous culture, religion and spiritual life would be at risk if BHP Billiton were granted the leases it sought.

Counsel for the mining company, Perth barrister Peter Quinlan, argued that human rights and public interest issues were irrelevant to the mining lease applications. He said there were other legal avenues where these matters could be considered under the state's Aboriginal Heritage and Environmental Protection Act.

Greg McIntyre, SC, a member of the Mabo legal team and now an adjunct law professor at Notre Dame University, says the Martidja Banyjima action is an unprecedented move by an Aboriginal group, which could have serious legal significance. "It would be difficult to argue that the public interest should not be considered in this case," McIntyre says. He says the WA Supreme Court ruling in favour of the Environmental Defenders Office on behalf of local residents was a strong precedent.

The Australian Human Rights Commission is watching the case closely. AHRC president Catherine Branson, QC, sent the Martidja Banyjima's legal adviser, Gadens Lawyers, a nine-page letter on June 26 saying that she was interested in the matter, although she had decided not to intervene "at this stage". Her letter cited international criticism of existing Western Australian laws for their failure to fully protect Aboriginal human rights, especially the way the Aboriginal Heritage Act permitted the destruction of registered heritage sites.

In particular, WA's Native Title Act had been repeatedly criticised by the UN Committee on the Elimination of Racial Discrimination and the Human Rights Committee as being discriminatory and not adequately protective of Indigenous land rights.

"WA's Aboriginal Heritage Act 1972 permitted destruction of registered Aboriginal sites with the minister's consent, without setting any quotas or limits to ensure a minimum level of protection to a particular Aboriginal group's enjoyment of their culture," Branson wrote.

A spokesman for BHP Billiton declined to comment on the case while it was before the Warden's Court, but said the Martidja Banyjimas were an important stakeholder for the company, which had a long-standing agreement with the group.

"All our developments are undertaken in full accordance with all the necessary environmental and regulatory approvals. BHP Billiton Iron Ore is committed to operating responsibly and sustainably. We value the relationships we have with indigenous communities," the spokesman said.

"The company is committed to indigenous development in the Pilbara and has a range of community programs in place across the areas of indigenous health, education, the arts, employment and economic development."

The Mining Warden has adjourned the matter to a date to be fixed. He is expected to take several months to announce his decision.